"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Monday, February 10, 2014

Whenever Executive Secretary of the Indiana Disciplinary Commission Michael Witte is questioned by reporters about why the Commission has not taken disciplinary action, his response is almost always the same, i.e. that the Commission lacks financial resources and manpower. But that response raises another issue regarding the poor priorities that Witte and the Commission members have when it comes to disciplining attorneys in this state. The No. 1 priority of the Commission should be enforcing the disciplinary rules to protect the public from harm. Yet it is clear in example after example that the Commission's priorities have been placed elsewhere.

Michael Witte, Executive Secretary,
Indiana Disciplinary Commission

The most recent example is the Scott Storms disciplinary case. The Indiana Lawyer reports:

A former administrative law judge with the Indiana Utility Regulatory
Commission has been reprimanded by the Indiana Supreme
Court, which ruled this week that a
harsher sanction was unwarranted because he’d already been punished
enough for seeking
a job with Duke Energy while making
rulings concerning the utility.

...

Duke hired Storms then fired him when accusations of ethical breaches arose. Ethics complaints clouded IURC decisions
after the allegations came to light and resulted in criminal
charges against former IURC director
Thomas Lott Hardy. Former Gov. Mitch Daniels fired Hardy after the
revelations.

Hardy was charged with a Class D felony
count of official misconduct that was dismissed last year, but the state
has sought
to appeal that decision. Hardy was accused
of lobbying Duke to hire Storms and having an ex parte communication
with the company
about its Edwardsport power plant in 2010.

...

Justices ruled Storms violated Profession
Rule of Conduct 1.11(d), which generally prohibits a lawyer serving as a
public
employee from negotiating for private
employment with anyone “involved as a party or as lawyer for a party in a
matter
in which the lawyer is participating.”

In the unanimous order, Chief Justice
Brent Dickson wrote for the court that discipline might have been more
severe had the
Disciplinary Commission not agreed to the
reprimand.

Let's summarize. An administrative law judge, presiding over state regulatory cases in which Duke Energy was a party, was at the same time soliciting employment from Duke. Is that a conflict of interest? Could the public have been harmed by Storms' actions? Yes, in fact millions of Hoosiers could have been harmed. Yet the Disciplinary Commission agreed to a mere public reprimand, which

Catherine Nestrick, Chair,
Indiana Disciplinary Comssion

the Supreme Court somewhat reluctantly went along with because Storms had already been fined $12,000 and barred from state employment, which of course he was trying to leave.

Witte and the Disciplinary Commission's approach to this type of case in which the public is harmed is not unusual. Two attorneys, Paul Page and David Wyser both received felony convictions, the former for being involved in a real estate scheme and the latter for bribery. Witte allowed them to continue practicing law for months before filing charges. I'm sure Page especially was grateful for the time given to him to wrap up his practice and earn considerably more money.

Then you have the case of William Conour who for years had been dipping into his trust account for his own use. Despite several people filing grievances about the problem, Witte took absoltleyno steps to charge Conour letting the harm to the public to continue...for years. It took the FBI stepping in and having Conour criminally charged and securing a plea deal before Witte would file charges.

Then you have the matter of Carl Brizzi. The U.S. Attorney's office declined to file criminal charges against the former Marion County Prosecutor but according to the Indiana Lawyer:

"[i]n a statement,
Hogsett described Brizzi's actions—accepting $25,000 in campaign
contributions from the father of a woman
(Paula Willoughby) who was seeking a modification to a murder sentence
and arranging
a lenient plea bargain for a business partner's client (Joseph Mobareki)—as "unacceptable"
and vowed to seek to have Brizzi's law license rescinded."

To date, the Commission has not taken action against Brizzi's license. Likewise, the Commission took no action against an Indiana attorney who was found to have failed to report over a million in legal income and in another matter Witte said that an attorney keeping over a $10,000 legal fees he explicitly was not entitled to under the legal services contract was simply a "fee dispute" that did not involve a matter of ethics. Of course, that doesn't stop the Commission from regularly pursuing other attorneys on claims they didn't earn their fees.

On the other side, the Commission had no problem spending enormous resources to go after Attorneys Thomas Dixon of Osceola and David Wemhoff of South Bend because they alleged in a recusal motion that a trial judge was biased against their clients and should recuse herself. Likewise, the Commission aggressively pursed a long-time Morgan County attorney Joseph Barker who wrote a letter which was filed by opposing counsel with the court in which Barker called the opposing party was "an illegal immigrant." While the charge against Dixon failed at the Supreme Court level, which resulted in the charge against Wemhoff which was similar also failing, Barker, a 45 year attorney with no disciplinary record, received a 30 day suspension. In all these cases, the Disciplinary Commission was willing to devote enormous resources to going after attorneys when there was little if any harm to the public caused by their actions. Al these attorneys had to deal with having their reputations tarnished by the Commission, the tremendous lost time in dealing with the charges, and the substantial expense of defending themselves from the charges.

Then of course you have my case, a charge over private emails I sent to opposing counsel and case participants in which I criticized a county judge's mishandling of an estate case. Supposedly my private emails caused "serious injury" to the public, the judicial system and the legal profession. Of course, I didn't make my criticism of the judge public - Executtive Secretary Michael Witte and the Disciplinary Commission did that when they filed the charges against me. It has been clear from my prosecution that Witte will spare no expense in making sure I lose my law license. (I certainly didn't get a Scott Storm type offer from the Commission.) During my 11 1/2 hearing, I counted no fewer than 6 and possibly as many as 8 DC staffers who were present. Besides the salaries of all the people from the Commission who have worked on my case, you have the $100 an hour charge for the hearing officer to prepare numerous orders in my case and and issue his 85 page report. I wouldn't be surprised if the Commission has spent $30,000 or more prosecuting me. Meanwhile, I'm asked to simply accept it as just a "coincidence" the curious timing of Witte filing two grievances against me shortly after I wrote publicly criticizing the Commission's practice of targeting small firm attorneys and sole practitioners and asking for the Supreme Court to investigate the operations of the Commission.

In the end, it comes down to priorities. Executive Secretary Witte and the Disciplinary Commission members have clearly not made protecting the public a priority when it comes to their enforcement of the disciplinary rules. I would again ask that the Indiana Supreme Court conduct a thorough an independent investigation of the Disciplinary Commission's practices, an investigation in which attorneys have their confidentiality protected because of the quite real fear they have of retaliation should they dare to say anything publicly critical of the Commission.

Below is the list of Commission members. While I know many times these individuals are probably just rubber-stamping Witte's recommendations (though we'll never know since the Commission operates in secrecy), these folks should still be held accountable for failing to make sure that the No. 1 priority of enforcing the disciplinary rules is to protect the public.

No comments:

Post a Comment

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.